In the Matter of the Compensation of Katherine Mandes, Claimant. Katherine MANDES, Petitioner,
LIBERTY MUTUAL HOLDINGS-LIBERTY MUTUAL INSURANCE, Respondent.
and submitted October 25, 2016
Compensation Board 1304012; .
M. Quinn argued the cause and fled the briefs for petitioner.
Kosieracki argued the cause for respondent. On the brief were
Steven T. Maher and Maher & Tolleson, LLC.
DeVore, Presiding Judge, and Garrett, Judge, and Powers,
Summary: Claimant seeks review of an order of the
Workers' Compensation Board holding that injuries
sustained during a paid break are not compensable under the
"going and coming" rule. Claimant contends that her
injuries occurred in the course and scope of her employment
while she was engaged in an activity for her personal comfort
and that the "going and coming" rule therefore is
inapplicable. Held: The board erred in determining
that claimant's injury was not compensable under the
"going and coming" rule without frst addressing
claimant's contention that the injury occurred while she
was engaged in an activity for her personal comfort.
seeks judicial review of an order of the Workers'
Compensation Board holding that injuries she sustained during
a paid break are not compensable. We review the board's
order for substantial evidence and errors of law. ORS
183.482(8)(a), (c). Because we conclude that the board
applied an incorrect legal analysis in deciding that the
claim is not compensable, we reverse the board's order
and remand for reconsideration.
facts relevant to our review are largely undisputed.
Claimant, who works for employer Liberty Mutual as a nurse
case manager, used her paid 15-minute break to take a walk
around the building with coworkers. As she returned to the
building, she tripped and fell on an uneven sidewalk adjacent
to employer's parking lot, sustaining multiple injuries.
denied claimant's claim for workers' compensation
benefits, and the board ultimately upheld the denial,
reasoning that claimant's injuries did not occur in the
course and scope of her employment. Citing this court's
opinion in Enterprise Rent-A-Car Co. of Oregon v.
Frazer, 252 Or.App. 726, 730-31, 289 P.3d 277 (2012),
rev den, 353 Or. 428 (2013), the board reasoned
that, because claimant was returning to work at the time of
her injury but was not on employer's premises or on
premises within employer's control, the "going and
coming" rule applied. The going and coming rule provides
generally that injuries sustained while an employee is
travelling to or from work do not occur in the course of
employment and are not compensable. Krushwitz v.
McDonald's Restaurants, 323 Or. 520, 526, 919 P.2d
465 (1996). There are exceptions to the going and coming
rule, including an exception for injuries that occur in an
employer-controlled parking lot. See Frazer v. Enterprise
Rent-A-Car Co. of Oreson. 278 Or.App. 409, 416, 374 P.3d
1003 (2016) (discussing parking lot exception). In applying
the going and coming rule here, the board concluded that the
"parking lot" exception did not apply, because
employer did not have control of the premises where claimant
fell. Therefore, the board concluded, claimant's injury
did not occur in the course of her employment. [289 Or. 270]
had argued to the board that her injuries arose out of and in
the course and scope of her work under the "personal
comfort" doctrine. Two dissenting board members agreed.
Under the personal comfort doctrine, a worker remains in the
course and scope of employment during personal comfort
activities that are sanctioned by the employer and are
incidental to, but not directly involved in, the performance
of the appointed task. U.S. Bank v. Pohrman, 272
Or.App. 31, 44-48, 354 P.3d 722, rev den, 358 Or. 70
(2015) (discussing doctrine).
activities that have been found to be within the course and
scope of employment under the personal comfort doctrine have
included coffee, lunch, or restroom breaks. See Mellis v.
McEwen, Hanna, Gisvold, 74 Or.App. 571, 703 P.2d 255,
rev den, 300 Or. 249 (1985) (tripping on a leg of a
chair while on a 15-minute lunch break); Halfman v.
SAIF, 49 Or.App. 23, 29-30, 618 P.2d 1294 (1980)
(crossing a street on a break to buy a drink); Jordan v.
Western Electric, 1 Or.App. 441, 446-47, 463 P.2d 598
(1970) (slipping on curb while returning from 15-minute
coffee break); see also Clark v. U.S. Plywood, 288
Or. 255, 266, 605 P.2d 265 (1980) ("[T]he compensability
of on-premises injuries sustained while engaged in activities
for the personal comfort of the employee can best be
determined by a test which asks: Was the conduct expressly or
impliedly allowed by the employer?"); Lex K. Larson,
Larson's Workers' Compensation § 21.01
to 21.08 (Matthew Bender rev ed 1998) (collecting cases on
"personal comfort doctrine").
personal comfort activities, if allowed or acquiesced in by
the employer, are deemed to have a sufficient connection to
the employment because they are "'helpful to the
employer in that they aid in efficient performance by the
employee.'" Jordan, 1 Or.App. at 446
(quoting with approval the California Supreme Court's
opinion in State Comp. Insurance Fund v. Workmen's
Comp. App. Bd. (Cardoza),67 Cal.2d 925, 928, 434 P.2d
619 (1967) (injuries sustained while swimming in a canal to
cool off during a coffee break held compensable)). In
Jordan, we set out seven factors to be considered in
determining whether a worker remains within the course and
scope of employment at the time of the injury while ...